ORAL ORDER I.A. No. 3034 of 2010 has been filed on behalf of two persons, namely, Suresh Anand Malakar and Dipak Kumar for impleading them as respondents in the instant writ petition claiming to be the members of Dukandar Sangh, having their shops, selling Agarbatti and flowers to the devotes, in the premises of the Wakf Estate No. 663 (hereinafter referred to as “the Wakf Estate” for the sake of brevity) and to be well acquainted with the internal affairs and mismanagement of the fund and other illegal activities of petitioner-Managing Committee, Hazrat Shah Syed Peer Murad Rahmatullah Allaih (hereinafter referred to as “the Managing Committee” for the sake of brevity) for one and a half decade even violating the directions of the Bihar State Sunni Wakf Board, Patna (hereinafter referred to as “the Board” for the sake of brevity). The main ground in the instant writ petition being the interpretation of various provisions of the Wakf Act, 1995 (hereinafter referred to as “the Act” for the sake of brevity), this Court does not find any justification to implead the said shop keepers as intervener-respondents to this writ petition and, accordingly, I.A.No.3034 of 2010 is rejected. 2. Learned counsel for the petitioner-Managing Committee and learned counsel for the Board and its authorities as well as learned counsel for the State of Bihar have already been heard at length and today the matter is posted “For Orders”. 3. This writ petition has been filed by petitioner –Managing Committee challenging resolution of the Board dated 13.6.2010 issued vide office order dated 28.6.2010 (Annexure 1) under the signature of its Chief Executive Officer (respondent no.3), taking direct control of the management of the Wakf Estate under section 65 of the Act, without giving any show cause notice to the petitioner, which is the Managing Committee of the Wakf Estate and adhering to the principle of audi alteram partem. The petitioner has also sought a direction to the Board to refrain from interfering with the smooth functioning of petitioner-Managing Committee. 4. Learned counsel for the petitioner stated that the petitioner is the Managing Committee of Dargah Hazrat Shah Syed Peer Murad Rahmatullah Allaih, commonly known as High Court Mazarsharif, Patna and is duly recorded as Wakf Estate no.663 in the Board. 4. Learned counsel for the petitioner stated that the petitioner is the Managing Committee of Dargah Hazrat Shah Syed Peer Murad Rahmatullah Allaih, commonly known as High Court Mazarsharif, Patna and is duly recorded as Wakf Estate no.663 in the Board. It was also stated that earlier also vide orders dated 14.11.1996 and 29.8.1996, the Chairman of the Board constituted a Managing Committee for the Wakf Estate and appointed an Assistant to collect the monthly rent and offerings for the Wakf Estate, but the said orders were quashed by this Court vide order dated 10.12.2008, passed in C.W.J.C. No. 11624 of 1996 (Annexure 2). However, a liberty was given to the Board to take appropriate decision in the interest of the Wakf Estate in conformity with law. 5. It was submitted by learned counsel for the petitioner that the Chairman of the Board again passed order dated 29.1.2009, communicated vide memo dated 26.2.2009 (Annexure 3) dissolving the Managing Committee and requesting the Board to assume the entire management and control of the Wakf Estate with immediate effect in exercise of power conferred by section 65 of the Act and further directed the said Managing Committee to hand over the entire charge of the Wakf Estate to an employee of the Wakf Board, namely, Najmul Haque. The said order was also challenged by the petitioner vide C.W.J.C. No. 3172 of 2009, which was finally decided by a Bench of this Court vide order dated 20.4.2009 (Annexure 4) quashing the aforesaid order of the Chairman dated 29.1.2009 as well as the consequential directions with an observation that it would be open to the Wakf Board to proceed afresh in the matter in accordance with law. 6. Learned counsel for the petitioner averred that petitioner –Managing Committee had been managing the Wakf Estate and developing it since the last one and a half decade and had also paid required cess from the net income of the Wakf Estate for the period from 1995-96 to 2008-09 vide bank draft no. 521638 dated 15/9/2009 (Annexure 7) of Canara Bank, which was accepted by the Board. 7. 521638 dated 15/9/2009 (Annexure 7) of Canara Bank, which was accepted by the Board. 7. Learned counsel for the petitioner asserted that in spite of the aforesaid orders of the High Court, the Board vide its resolution dated 13.6.2010 took the management of the Wakf Estate under the direct control of the Board under section 65 of the Act and till suitable alternative was made. Mr. Najmul Haque, clerk of the Board was appointed as official in charge of the Wakf Estate, who would submit his report about the Wakf Estate to the Board and the fund of the Wakf Estate was directed to be operated by the Executive officer under the Bihar Wakf Rules, 2002. The said resolution of the Board was communicated vide office order dated 28.6.2012(Annexure 1). 8. Learned counsel for the petitioner claimed that the impugned order/resolution of the Board was illegal, arbitrary and perverse on various grounds. The said order/resolution was passed without any notice or opportunity to the petitioner to place its case violating the principle of audi alteram partem although petitioner-Managing Committee had been managing the affairs of the Waqf Estate since long. It was also argued that by the impugned order/resolution, the Board had taken the management of the Wakf Estate under its direct control under section 65 of the Act without exercising power under section 64 of the Act, specially when petitioner-Managing Committee, constituted by the locals and the beneficiaries of the Wakf Estate, had been functioning full-fledged since long. 9. Learned counsel for the petitioner argued that the word “Mutawalli” used in the Act included the Managing Committee of a Wakf by user like the present one and it can be removed only on the grounds mentioned in sub-section (1) and in the manner provided in sub-section (3) of section 64 of the Act and such decision could have been taken only by a majority of not less than two –third of the members of the Board and that too after holding an enquiry in the prescribed manner under section 64 of the Act as laid down in Rule 51 of the Bihar Wakf Rules, 2002. Furthermore, power under section 65 of the Act can be exercised by the Board only when there was a vacancy in the office of the Mutawalli and no suitable person being found to fill up the same, the Board can take management of the Wakf Estate in its direct control. 10. Learned counsel for the petitioner also argued that it was quite apparent from orders dated 23.7.1997 and 24.9.1971 (Annexures 10 and 11) passed in C.W.J.C. No. 12624 of 1996 that the Court was satisfied with the smooth functioning of petitioner-Managing Committee, which had been collecting offerings and receiving rents, running Madarsa and taking steps for development of the Wakf Estate, but in spite of that respondent-Board had been consistently treating petitioner-Managing Committee in a disdainful manner. 11. On the other hand, learned counsel for respondent-Board and its authorities opposed the aforesaid contentions of learned counsel for the petitioner and stated that the Board and its authorities had been throughout taking steps as per the direction of the High Court and the impugned resolution dated 13.6.2010 (Annexure 1) issued by the Chief Executive Officer was in compliance of order dated 20.4.2009 (Annexure 4) passed by a Bench of this Court in C.W.J.C. No. 3172 of 2009, which was filed by the petitioner, by which liberty was given to respondent-Board to proceed afresh in the matter in accordance with law. 12. Learned counsel for the respondent-Board and its authorities submitted that the Wakf Estate was a public trust by user as there is no deed of dedication and hence there was no Mutawalli of the Wakf Estate. The said Wakf Estate no. 663 was registered in the Board on 17.3.1953 through Mr Syed Shah Asghar Hussain, an eminent citizen and a renowned Senior Lawyer of the Patna High Court with Mr Mahboob Alam of Dariapur as Secretary and after completion of the term of the said Committee, another Committee was formed of prominent personalities by the Board and the said constitution was for three years and the said process continued. 13. It was also claimed that subsequently on 18.6.1995 a Managing Committee was constituted with Mr. Naiyer Khurshid as Patron, Prof. Wajid Khan as President, Mr Faizur Rahman as Vice President, Mustafa as Secretary, Md. Israfil Anwar as Joint Secretary, Md Suslim as Assistant Secretary and Ajiz Ahmad, Hasfiz Khan, Abdul Gafoor, Naushad Alam, Hasibur Rahman, Jannat Hussain, Md. 13. It was also claimed that subsequently on 18.6.1995 a Managing Committee was constituted with Mr. Naiyer Khurshid as Patron, Prof. Wajid Khan as President, Mr Faizur Rahman as Vice President, Mustafa as Secretary, Md. Israfil Anwar as Joint Secretary, Md Suslim as Assistant Secretary and Ajiz Ahmad, Hasfiz Khan, Abdul Gafoor, Naushad Alam, Hasibur Rahman, Jannat Hussain, Md. Alam and Khalid Anwar as its Member. However, the said committee usurped the Wakf money and committed several illegalities, as for example, the petitioner has itself admitted that Wakf cess had not been paid to the Board for about one and a half decade since 1995 and was paid in a lump sum only in September, 2009, although it was to be paid by the Managing Committee every year out of the income of the Wakf Estate as per the mandatory provision of section 72 of the Act. 14. Learned counsel for the respondents asserted that this writ petition had been filed only by Mustafa, who was earlier the Secretary of the Managing Committee constituted in 1995, but due to his illegal activities a meeting of the Managing Committee was held on 17.1.2010 (Annexure B), in which it was resolved to dissolve the Managing Committee by more than two third members (9 out of 13 members). The said resolution had been signed by its patron Nayer Khurshid, its President Prof. Wazid Khan, its Assistant Secretary Mohd. Suslim and its Members Hafiz Khan, Abdul Gaffur, Habibur Rahman, Jannat Husssain, Md. Alam Khalid Anwar. 15. Learned counsel for the respondents averred that due to the dissolution of the aforesaid Managing Committee, after 17.1.2010 no committee was existing, hence neither any notice was required to be sent to such a non-existent body nor any opportunity was required to be given to Mustafa, who had filed this writ petition. He further argued that four orders were passed by this Court in the year, 2008-09, when the said Managing Committee was in existence and hence steps had to be taken under section 64 of the Act. He further argued that four orders were passed by this Court in the year, 2008-09, when the said Managing Committee was in existence and hence steps had to be taken under section 64 of the Act. But on account of development of 2010 by which the Managing Committee dissolved itself and a vacuum was created, there was no occasion for the Board to take any step under section 64 of the Act, rather the most appropriate provision for filling up the vacuum, created by dissolution of the Managing Committee, was to take steps under section 65 of the Act, which the Board had legally and properly taken. 16. Learned counsel for the respondents argued that this writ petition had been filed by one Mustafa, who was earlier the Secretary of the Managing Committee, but after dissolution of the Managing Committee, he had no right at all to file this writ petition on behalf of the Wakf Estate. In fact, he along with his near relatives was claiming to be a validly constituted Managing Committee, but his interest was adverse and detrimental to the interest of the Wakf Estate as he and his near relatives were shop keepers and illegal occupants of the premises of the Wakf Estate and hence they cannot legally be the members of the Managing Committee of the Wakf Estate. 17. Learned counsel for the respondents also argued that the claim of the petitioner regarding replacement of the members of the Managing Committee was absolutely illegal and perverse as when the entire Managing Committee had been dissolved by more than two-third of its members (9 out of 13 members), a new Managing Committee had to be constituted by the Board and there was no question of replacement of any member and that too by a non- existent general body. It was only an after thought mentioned by the petitioner in its reply to the counter affidavit against the established fact. Moreover, no one ever intimated the Board about any such change or replacement and the petitioner had adopted a convenient route to escape from the consequences of the vacancy due to dissolution of the Managing Committee calling intervention under section 65 of the Act. Hence, the impugned resolution/order of the Board is legal, valid and proper and requires no interference by this Court. 18. Hence, the impugned resolution/order of the Board is legal, valid and proper and requires no interference by this Court. 18. Considering the averments made by learned counsel for the parties and the materials on record, it is quite apparent that the main dispute between the parties is as to whether section 64 of the Act would be applicable in the instant case or section 65 thereof would be applicable. The aforesaid sections 64 and 65 of the Act read as follows:- “64. Removal of Mutawalli. (1) Notwithstanding anything contained in any other law or the deed of wakf, the Board may remove a Mutawalli from his office if such Mutawalli- (a) has been convicted more than once of an offence punishable under section 61; or (b) has been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or (c) is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of Mutawalli; or (d) is an undischarged insolvent; or (e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or (f) is employed as a paid legal practitioner on behalf of, or against, the wakf; or (g) has failed, without reasonable excuse, to maintain regular accounts for two consecutive years or has failed to submit, in two consecutive years, the yearly statement of accounts, as required by sub-section (2) of section 46; or (h) is interested, directly or indirectly, in a subsisting lease in respect of any wakf property, or in any contract made with, or any work being done for, the wakf or is in arrears in respect of any sum due by him to such wakf; or (i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the wakf or in respect of any money or other wakf property; or (j) willfully and persistently disobeys the lawful orders made by the Central Government, State Government, Board under any provision of this Act or rule or order made thereunder; (k) misappropriates or fraudulently deals with the property of the wakf. (2) The removal of person from the office of the Mutawalli shall not affect his personal rights, if any, in respect of the wakf property either as a beneficiary or in any other capacity or his right, if any, as a sajjadanashin. (3) No action shall be taken by the Board under sub-section (1), unless it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board. (4) A Mutawalli who is aggrieved by an order passed under nay of the clauses (c) to (j) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the tribunal and the decision of the Tribunal on such appeal shall be final. (5) Where any inquiry under sub-section (3) is proposed or commenced, against any Mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of the wakf, by an order suspend such Mutawalli until the conclusion of the inquiry. Provided that no suspension for a period exceeding ten days shall be made except after giving the Mutawalli a reasonable opportunity of being heard against the proposed action. (6) Where any appeal is filed by the Mutawalli to the Tribunal under sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver to manage the wakf pending the decision of the appeal, and where such an application is made, the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure 1908 (5 of 1908) appoint a suitable person as receiver to manage the wakf and direct the receiver so appointed to ensure that the customary or religious rights of the Mutawalli and of wakf are safeguarded. (7) Where a Mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the Mutawalli to deliver the possession of the Wakf property to the board or any officer duly authorized in this Bihar or to any person or committee appointed to act as the Mutawalli of the Wakf property. (7) Where a Mutawalli has been removed from his office under sub-section (1), the Board may, by order, direct the Mutawalli to deliver the possession of the Wakf property to the board or any officer duly authorized in this Bihar or to any person or committee appointed to act as the Mutawalli of the Wakf property. (8) A Mutawalli of a Wakf removed from his office under this Section shall not be eligible for reappointment as a Mutawalli of the Wakf for a period of five years from the date of such removal.” “65. Assumption of direct management of certain wakf by the Board. (1) where no suitable person is available for appointment as a Mutawalli of a Wakf, or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling up of the vacancy in the office of a Mutawalli is pre-judicial to the interest of the Wakf, the Board may, by notification in the Official Gazette, assume direct management of the Wakf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notifications. (2) the State Government, may, on its own motion or on the application of any person interested in the Wakf, call for the records of any case for the purpose of satisfying itself as to the correctness, legality or propriety of the notification issued by the Board under sub-section (1) and pass such orders as it may think fit and the orders so made by the State Government shall be final and shall be published in the manner specified in sub-section (1). (3) As soon as possible after the close of every financial year, the Board shall send to the State Government a detailed report in regard to every Wakf under its direct management, giving therein- (a) the details of the income of the Wakf for the year immediately proceeding the year under report; (b) the steps taken to improve the management and income of the Wakf; (c) the period during which the wakf has been under the direct management of the Board and explaining the reasons as to why it has not been possible to entrust the management of the wakf to the Mutawalli or any committee of management during the year; and (d) such other matters as may be prescribed. (4) the State Government shall examine the report submitted to it under sub-section (3), and after such examination issue such directions or instructions to the Board as it may think fit and the Board shall comply with such directions or instructions on receipt thereof.” 19. From a bare perusal of the aforesaid two sections of the Act, it cannot be disputed that the term “Mutawalli”as defined under section 3(i) of the Act includes the Committee, managing or administering any wakf or its property. Thus, it is apparent that section 64 of the Act deals with a situation, where a Mutawalli/committee is functioning, but the Board is not satisfied with its functioning and deems it proper to remove the Mutawalli/committee and appoint a fresh Mutawalli or committee for proper management of the Wakf Estate. On the other hand, section 65 of the Act deals with a situation where no Mutawalli/committee is functioning for a Wakf Estate and the Board deems it proper to take management of the Wakf Estate under its direct control. Hence, the aforesaid two sections deal with the two completely different situations contrary to each other. 20. No doubt, vide order dated 10.12.2008 (Annexure 2) passed in C.W.J.C. No. 12624 of 1996 and order dated 20.4.2009 passed in C.W.J.C. No. 3172 of 2009 (Annexure 4), the Benches of this Court had held that a Managing Committee having been functioning in the Wakf Estate and there being no vacancy therein, any dissolution of the said Committee and any appointment of a fresh Committee without taking recourse to the procedures provided in section 64 of the Act was illegal and hence the orders of the authorities of the Board dated 14.11.1996, 29.8.1996 and 29.1.2009 without adhering to the procedure of section 64 of the Act were quashed and the Board was directed to proceed afresh in the matter in accordance with law. 21. However, after passing of order dated 20.4.2009 by a Bench of this Court in C.W.J.C. No. 3172 of 2009, the scenario had changed in the year 2010, when vide resolution dated 17.1.2010 the Managing Committee of the Wakf Estate itself resolved to dissolve the Managing Committee by more than two third of its members (nine out of thirteen members). This resolution had also been sent to the Board and had been supported by some of those members in their letters to the Board (Annexure 18 series). This resolution had also been sent to the Board and had been supported by some of those members in their letters to the Board (Annexure 18 series). Hence after the said dissolution of the Managing Committee by majority of its members, the then Managing Committee became non-existent. 22. So far the claim of the petitioner in the aforesaid regard that after the said resolution dated 17.1.2010, the general body comprising local people of the area took appropriate resolution for filling up the vacancies of certain members, who had left the Committee, is concerned, the said plea had not been taken in the writ petition and had been taken only in the petitioner’s reply to the rejoinder of respondents no. 2 to 4 without annexing the copy of any such resolution and without even giving any detail or date of such a resolution and only in paragraph 6 thereof, the names of the alleged office bearers and members including the petitioner as Secretary have been mentioned. In any view of the matter when the entire Managing Committee had been dissolved on `17.1.2010, there was no occasion for any one including the Wakf Board or the general body, if any, to fill up the vacancies in the already dissolved Managing Committee. Hence, such a plea of the petitioner cannot be legally relied upon as it is merely a bald and frivolous statement, not supported by any reliable material and it appears to be only for the purposes of personal aggrandizement of petitioner Mustafa and his henchmen for having control over the Wakf Estate. 23. In the said circumstances, this Court has no hesitation in holding that the erstwhile Managing Committee of the Wakf Estate had been dissolved on 17.1.2010 by more than two third members (nine out of thirteen members), whereafter, there was no Committee to manage the Wakf Estate and there was vacancy due to the absence of any Mutawalli/Managing Committee for the said Wakf Estate. Hence in the aforesaid changed scenario, now section 64 of the Act and the procedure provided therein would not be applicable as there is no question of removal of any non-existent Mutawalli/Managing Committee, rather due to the vacancy of Mutawalli/Managing Committee in the Wakf Estate, the Board was quite legal and justified in taking steps under the provisions of section 65 of the Act, for which all the requirements have been fulfilled. 24. 24. Before parting, this Court further directs the Board and its authorities to deal with the affairs of the Wakf Estate in question with extreme care and precaution taking every step in accordance with law as well as in accordance with the specific directions of the Court given from time to time. 25. It may be noticed that earlier C.W.J.C. No. 575 of 2002 was filed on behalf of the Managing Committee of the Wakf Estate challenging the order of the Anchal Adhikari dated 18.8.2001 directing the said petitioner to remove the illegal constructions made in the Government land adjacent to the Patna High Court premises and directing the petitioner to produce the papers with respect to the Wakf land so that the question of encroachment over public land could be decided. This Court considered the entire matter in detail vide order dated 21.8.2006 and after hearing all the parties came to the conclusion that only plots no. 193 and 194 were the Wakf lands being Kabristan and Mazarsharif (Dargah), whereas, plot no. 195 was a disputed plot and if the petitioner wanted it to be recorded in its favour, it might move before the Collector, Patna, who was directed to consider the claim of the parties on the basis of the materials placed before him and to decide the same in accordance with law expeditiously. This Court is not aware what order was passed by the Collector with respect to plot no. 195, but by the said decision it is quite apparent that only plots no. 193 and 194 were the Wakf lands, which can be recorded in the Wakf Board as Wakf lands of Wakf Estate No.663, whereas, other lands apperataining to plots no. 142,143,190,192 & 196 etc. were public lands. 26. It transpires that the said order dated 21.8.2006 passed in C.W.J.C. No. 575 of 2002 has never been challenged by any one and it has attained finality and has also been followed by another Bench of this Court while passing order dated 31.1.2012 in C.W.J.C. No. 15728 of 2006. In the said circumstances, any mention of the lands of the Wakf in question either in the instant order or in any order passed in other writ petitions would mean only plots no. 193 and 194 and it may include plot no. 195 if the Collector passes or has passed order in favour of the Wakf Estate. In the said circumstances, any mention of the lands of the Wakf in question either in the instant order or in any order passed in other writ petitions would mean only plots no. 193 and 194 and it may include plot no. 195 if the Collector passes or has passed order in favour of the Wakf Estate. 27. Considering the aforesaid facts and materials on record, this Court does not find any illegality in the impugned order and action of the Board nor does it find any merit in the claim of the petitioner and, accordingly, this writ petition is dismissed, with the above mentioned directions/observations.